You need not spend much time reading the news to know that recent Hurricanes Harvey and Irma have disrupted the lives of tens of thousands of individuals, many of whom may already have behavioral health needs; however, the trauma caused by these recent natural disasters, and others, has created an immense need for additional behavioral and mental health services. For example, a 2012 study entitled “The Impact of Hurricane Katrina on the Mental and Physical Health of Low-Income Parents in New Orleans” reported elevated rates of incidence of Post-Traumatic Stress Disorder (“PTSD”), depression, and a need for mental health services for as much as 50 percent of the low-income population affected by Hurricane Katrina, which hit in August 2005. A Fortune Magazine article reported elevated incidences of PTSD, depression, and anxiety experienced by victims of Hurricane Sandy, which hit in October 2012. In the wake of Hurricane Harvey, some telehealth providers have offered free telehealth services to hurricane victims and a few behavioral health providers have established specific programs focused on providing access to behavioral health services. However, additional services are still needed to treat the long-term mental health needs of these victims.
Providers of health services, especially behavioral health services, who utilize telehealth technologies to treat and diagnose victims of natural disasters, should be acutely aware of certain limitations in state laws that may create liability associated with the services they are providing. Treating victims of natural disasters through telehealth technologies can be difficult because a treating provider must determine the patient’s home state and quickly assess how this may affect the provider’s ability to treat the patient; yet, answering this seemingly simple question can be extremely difficult given the uncertainty and displacement for many in the wake of a natural disaster. Consider the following examples involving Amanda, a Houston resident driven from her home by Hurricane Harvey who has decided to seek the services of a psychologist to deal with the significant emotional and psychological upheaval caused by the recent events:
- Scenario #1: Amanda’s Houston home has been destroyed, so she purchases a new home in another state. In this scenario, a psychologist treating Amanda must be licensed to practice in the new state where Amanda now lives.
- Scenario #2: Amanda’s Houston home is damaged, but is not destroyed, so she plans to move back to Houston once the home has been repaired. In the interim, Amanda moves in with family located in Indiana. Ind. Code § 25-1-9.5-7(b) is fairly clear in that a “Telemedicine Provider Certification with the Indiana Professional Licensing Agency . . . [is required] before the provider may establish a provider-patient relationship or issue a prescription for an individual located in Indiana.” Thus, a psychologist treating Amanda must be licensed to practice in Indiana.
- Scenario #3: Amanda’s Houston home is damaged, but is not destroyed, so she plans to move back to Houston once the home has been repaired. In the interim, Amanda moves in with family located in West Virginia. W. Va. Code § 30-21-3 allows a psychologist to practice up to ten days per year without seeking licensure or providing any notice to the State. Therefore, Amanda could seek limited treatment from an out-of-state psychologist; however, the psychologist must become licensed in West Virginia if the repairs to Amanda’s home cannot be completed (and, thus, she does not move back to Houston) before her eleventh day of treatment. Please also note that this law pertains to psychologists, only; if Amanda seeks treatment from a psychiatrist or a therapist, different West Virginia laws and regulations may apply.
The question that must be addressed at the very onset of taking on a new patient, or learning that an existing patient has moved, is whether the provider is even permitted by law to treat the patient utilizing telehealth technologies. If the telehealth program through which the provider is treating the patient is only established in one or a few states, the provider may lack the proper professional licensure to provide treatment to patients who move, or even temporarily relocate, to a different state. Some states, like Washington, have special temporary provisions that will allow a provider to treat patients residing in the state without requiring that the provider obtain a full and unrestricted license to practice; however, many more states do require that providers obtain full and unrestricted licenses to practice in the state before the provider may treat any patients who are residing in the state, even temporarily. Some states, like West Virginia, may establish a “middle ground” by allowing for limited treatment of patients without having a full and unrestricted license to practice in the state.
Even if a physician has the proper professional licensure to treat a patient residing in a given state, the provider also must understand what the state requires the provider to do in order to establish a physician-patient relationship, as well as any limits placed on the provider’s ability to treat the patient using telehealth technologies under the state’s relevant laws. For example, in Arkansas, a physician-patient relationship may not be established through telehealth means. Ark. Code Ann. § 17-80-118(e)(1) requires the treating telehealth physician to either already have a relationship with the patient or to act in concert with another provider who has established such a relationship with the patient. Yet, the opposite is true in other states, including California, where a physician-patient relationship may be established through telehealth means to the extent that the physician can conduct an examination of the patient (utilizing telehealth technology) that is sufficiently comprehensive for the treatment being provided to the patient. Additionally, the treating physician must ensure that any medication she/he prescribes through telehealth encounters can be prescribed under the state’s remote prescribing laws. Most states require that an in-person visit has occurred between the physician and the patient before certain classes or schedules of drugs may be prescribed. This is further complicated by the fact that states often differ with regard to how they schedule these drugs. As a result, a physician may not be able to newly prescribe or help a patient maintain an existing prescription using certain prescription-only drugs, if the patient moves to a state with these types of restrictions in place.
In spite of these potential regulatory obstacles, behavioral health providers have tough choices to make between managing the potential risks of non-compliance with treating victims of natural disasters who can benefit greatly from having access to behavioral health services. Providers can consider options such as establishing questionnaires that request even temporary or part-time address information from patients, so that the providers have this information at the outset of their interactions with the patient rather than learning this information during the initial (or later) therapy sessions. Providers would then have the option to consult counsel or directly discuss the issue with state regulators, if the application of state laws of one possible “home state” could potentially limit or change how the provider would treat the patient, or to give providers the option of seeking a professional license from any additional states in order to provide services to such patients in a compliant manner.